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Hairston v. United States

United States District Court, N.D. Georgia, Atlanta Division

January 15, 2019

PATRICE HAIRSTON, BOP Reg. # 64704-019, Movant,
v.
UNITED STATES, Respondent.

         MOTION TO VACATE 28 U.S.C. § 2255

          MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          J. Clay Fuller United States Magistrate Judge.

         Movant, Patrice Hairston, has filed a 28 U.S.C. § 2255 motion to vacate her sentence. (Doc. 193). IT IS RECOMMENDED that the motion be DENIED.

         I. Background

On May 14, 2013, a federal grand jury sitting in the Northern District of Georgia indicted Patrice Hairston [Movant], Sarah Hyldahl, Bonnie Rose, and Ronnika Allen, for conspiracy, mail fraud, and wire fraud arising from a residential mortgage fraud scheme. Specifically, [Movant] was charged with conspiracy under 18 U.S.C. § 1349 (Count 1), mail fraud under 18 U.S.C. § 1341 (Counts 2 and 3), and wire fraud under 18 U.S.C. § 1343 (Counts 4, 5, 6, and 8). Hyldahl, Rose, and Allen subsequently pled guilty pursuant to written plea agreements that included cooperation provisions.

(Gov't Resp. (Doc. 205) at 2 (formatting altered; citations omitted)).

         The government summarizes the evidence from Movant's trial as follows:

Between August 2008 and January 2009, [Movant] and her cooperating co-defendants obtained . . . loans on six properties from Quicken Loans, Inc. (“Quicken”). Two loans were for co-defendants Rose and Allen to purchase properties for themselves, and four loans were for straw buyers to purchase town homes in the Ewell Parc subdivision, one of which [Movant] herself moved into and occupied. [Movant], a real estate agent, was involved in and helped carry out each aspect of the fraud scheme to obtain these loans charged in the indictment.
[Movant] and her co-defendants obtained each of these loans by means of false representations about the borrowers' employment, income, and bank account balance. [Movant] falsely represented and verified for Quicken that the straw borrowers were employees of two companies that she co-owned with Rose, Executive Offices Plus and Marketing Communications Group. Using her laptop computer, [Movant] made false W-2s and earnings statements (also referred to as paystubs) that were submitted to Quicken to support false employment and income representations on loan applications. . . . [E]mails between [Movant] and Allen documented that [Movant] manufactured fake documents to help borrowers qualify for loans.
[F]or the straw borrower/Ewell Parc loans, [Movant] and her co-defendants obtained and attempted to obtain “marketing fees” between $50, 000 and $70, 000 that were paid or would be paid from the loan proceeds at closing, although no legitimate marketing work had been done. [Movant] helped falsify documentation that was provided to the closing attorney to obtain a “marketing fee” out of Quicken's loan proceeds. [Movant] and her co-defendants used these funds to pay kickbacks to the borrowers, to fund down payments that the straw borrowers were supposed to make from their own funds (which they did not have), and to enrich themselves. [Movant] shared in and split the remaining proceeds from the fraudulently obtained “marketing fees” equally with her co-defendants. [Movant] ended up living in one of the Ewell Parc properties, which was purchased in the name of one of the straw borrowers. [She] did not make payments on the mortgage.

(Id. at 4-6 (citations and footnote omitted); see Id. at 5 n.3 (“For each loan, the Government introduced exhibits numbered to correspond to the substantive mail and wire fraud counts in the indictment. These exhibits included documents from the lender's file, numbered to correspond to the count and marked as the “A” exhibit, and from the closing attorney's file, marked as the “B” exhibit. Additional documents, such as bank records, emails, and wire receipts, relating to these loans were marked as C, D, E, and so on.”)).

         Movant “and her co-conspirators pocketed most of the ‘marketing fees' as their share of the fraud proceeds. The testimony at trial was that [Movant] and her co-conspirators all shared in the proceeds. Bank records corroborated this. For example, [Movant] received $18, 000 cash from the Bostic loan for 2259 Ewell Park.” (Doc. 130 (Gov't Sentencing Mem.) at 5). “As a real estate agent, [Movant] shepherded some of the fraudulent transactions through to closing, earning a real estate commission of $7, 000 to $9, 000 each on three loans for such work.” (Id.). “In addition to an almost $70, 000 ‘marketing fee,' [Movant] earned a real estate commission of over $7, 000 for closing th[e] fraudulent” “Ayana Chambers/2273 Ewell Park loan.” (Id. at 5-6). Movant “was arrested on January 22, 2009, bringing straw buyer Heather Moomey's cash from [a] borrower check to a closing from which Defendant and her co-conspirators intended to get over $75, 000 in fraud proceeds. As with the other loans, [Movant] had made the false W-2s and paycheck stubs (or earnings statements) used to qualify Moomey for the loan.” (Id. at 6).

As the chart at Exhibit A shows, [Movant] and her co-conspirators executed their fraudulent scheme multiple times, for multiple loans and monies, for over a year. [Movant] engaged in very straightforward, unambiguous fraud: lying and creating false documents to get money from others. Unlike some cases, there are no grey areas, no issues of good faith, and no issues of mistake on [Movant's] part in this case. But for the law enforcement sting at the Moomey closing, there is no indication that the scheme would have stopped.

(Id. at 17).

         II. The § 2255 Motion

         In her § 2255 motion, Movant claims ineffective assistance of counsel with respect to every phase of her trial and appeal. (See Docs. 193, 200, 202-03, 212).

         III. Standard of Review

         A federal prisoner may file a motion to vacate her sentence “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). But it is well-settled that “to obtain collateral relief, a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982).

         IV. Movant's Grounds For Relief: Ineffective Assistance Of Counsel

         Movant, referring to herself as petitioner throughout her pleadings, offers four grounds for relief, alleging ineffective assistance of trial counsel in the first three grounds and ineffective assistance of appellate counsel in the fourth.

         The Supreme Court set forth the standard for evaluating claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984); see Dell v. United States, 710 F.3d 1267, 1272 (11th Cir. 2013) (applying Strickland standard of review to ineffective-assistance-of-counsel claim raised in § 2255 motion). “An ineffectiveness claim . . . is an attack on the fundamental fairness of the proceeding whose result is challenged.” Strickland, 466 U.S. at 697. The analysis involves two components, but a court need not address both if the petitioner “makes an insufficient showing on one.” Id.

         First, a federal court determines “whether, in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance.” Id. at 690. The court “must be highly deferential” in scrutinizing counsel's performance and “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. In other words, the petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (Internal quotations omitted). “Given the strong presumption in favor of competence, the petitioner's burden of persuasion - though the presumption is not insurmountable - is a heavy one.” Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). Second, a federal court determines whether counsel's challenged acts or omissions prejudiced the petitioner, i.e., whether “there is a reasonable probability” - one “sufficient to undermine confidence in the outcome” - that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

To prevail on a claim of ineffective assistance, a defendant must establish two things: (1) “counsel's performance was deficient, ” meaning it “fell below an objective standard of reasonableness, ” and (2) “the deficient performance prejudiced the defense.” Strickland[], 466 U.S. [at] 687-88 []. To satisfy the deficient-performance prong, the defendant must show that counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687. The defendant must rebut the strong presumption that his counsel's conduct fell within the range of reasonable professional assistance. Id. at 689.

Connolly v. United States, 568 Fed.Appx. 770, 770-71 (11th Cir. 2014).

         The foregoing analysis also applies to claims of ineffective assistance of appellate counsel. “A first appeal as of right . . . is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney.” Evitts v. Lucey, 469 U.S. 387, 396 (1985). “A defendant can establish ineffective assistance of appellate counsel by showing: (1) appellate counsel's performance was deficient, and (2) but for counsel's deficient performance he would have prevailed on appeal.” Shere v. Sec'y, Fla. Dep't of Corr., 537 F.3d 1304, 1310 (11th Cir. 2008) (citing Smith v. Robbins, 528 U.S. 259, 285-86 (2000)). But appellate counsel “need not advance every argument, regardless of merit, urged by the appellant.” Lucey, 469 U.S. at 394; see Robbins, 528 U.S. at 288 (noting that “it is difficult to demonstrate that [appellate] counsel was incompetent” for failing “to raise a particular claim, ” and “[g]enerally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome” (internal quotations omitted)).

         A. Ground One: Ineffective Assistance At The Pretrial Stage

         1. Movant's Claims And Arguments

         In ground one, Movant claims ineffective assistance of counsel during the pretrial proceedings:

1. Counsel . . . failed to review the discovery . . . with [her].
2. Counsel . . . failed to investigate the purported “victims”[;] counsel would have found that all of the alleged victims had not reported ANY loss and would further have discovered that the alleged losses were not within the temporal scope of the conspiracy as defined by the indictment of December 1, 2007 through February 11, 2009.
3. Counsel . . . never asked [Movant] about the events pertaining to or surrounding the instant case.
4. Counsel . . . never obtained police report to validate original arrest and events from January 22, 2009, or [sought] surveillance camera footage between the times of approximately 12:30 p.m. and 5:42 p.m. as [Movant] request[ed], which would have corroborated the true testimony that [she] made at the Suppression Hearing [and would have prevented her from receiving] the “Obstruction of Justice” enhancement of 2 points.
5. Counsel . . . failed to notice or present Speedy Trial violations.
6. Counsel . . . failed to use the compulsory power of the court on [Movant's] behalf[, whereas t]he Government subpoenaed numerous witnesses . . . . [Counsel failed to]:
(a) subpoena[] witnesses;
(b) interview anyone;
(c) consult or engage a forensic accountant, preferably one with knowledge or area of expertise in mortgages/finance;
(d) subpoena or interview any of the interns, administrative staff, contractors, etc. who did work for the companies owned and/or operated by defendants;
(e) subpoena or interview any of the clients (current and previous) that contracted with the companies owned and/or operated by defendants;
(f) consult or engage a handwriting analyst, who would have been in a position to dispute or confirm the likelihood of signatures; instead he chose to concede to [Movant's] guilt against her wishes.
7. Counsel . . . violated her Fifth Amendment right to Due Process and to effective counsel when he failed to research and investigate any of the charges alleged by the government thereby missing the fact that Quicken Loans, Inc. did not qualify as a financial institution at the time; so therefore [there] was not a federal offense during the period of the alleged conduct.
8. [Movant] incorporate[s] ¶¶ 1-7, [showing that] but for counsel's unprofessional errors coupled with the fact that he did not raise [] other options, jurists of reason would agree that the outcome of the sentencing would have been different and defendant would have received the benefit of that difference ranging from a dismissal to the charge of misprision of felony only and the loss amounts along with restitution being corrected accordingly.

(Doc. 200 at 13-14). Movant argues:

[Trial counsel R. Gary Spencer] failed to make even the most minimal investigation into the facts told him; failed to interview anyone or even get public documents or information which would have supported the truth [Movant] told him. There were documents that had been given to him on no less than three [] occasions, which either he did not review and/or did not get an understanding of until the evening before the sentencing hearing. While having this discussion regarding the lack of loss and why, he made the statement, “If I can't understand it, then she (meaning the judge) is not going to be able to understand it.” His lack of comprehension or understanding of the alleged losses that were not within the temporal scope of the conspiracy as defined by the indictment of December 1, 2007 through February 11, 2009, was further reiterated in the sentencing hearing when he stated, “It was my fault. I did not understand the ...

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